Burgess v Woollahra Council

[2004] NSWLEC 626

Land and Environment Court

of New South Wales

CITATION:	Burgess v Woollahra Council [2004] NSWLEC 626
PARTIES:	APPLICANT Michael Burgess RESPONDENT Woollahra Council .
FILE NUMBER(S):	10764 of 2004
CORAM:	Moore C
KEY ISSUES:	Development Application :- Impact on neighbouring heritage building .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan 1995 Woollahra Heritage Development Control Plan .
CASES CITED:	Zhang v Canterbury City Council (2001) 115 LGERA 373; Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; .
DATES OF HEARING:	8 November 2004
EX TEMPORE JUDGMENT DATE :	11/08/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr D O'Donnell, solicitor Mallesons Stephen Jacques RESPONDENT Ms R Mohr, solicitor Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

8 November 2004

04/10764 Michael Burgess v Woollahra Council

JUDGMENT

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed (and subsequent actual) refusal by Woollahra Council of DA 106/2004 for proposed additions and alterations to premises at 25 Jersey Rd. Woollahra (the site).

2 The house on the site is the westernmost of a group of three houses that are listed as items of contributory significance to the heritage of the West Woollahra Precinct and it is located adjacent to and immediately the east of an individual building listed as an item of heritage significance which is a residence known as Runnymede.

3 Pursuant to the provisions of the Woollahra Local Environmental Plan 1995 (the LEP) in considering any application I must have regard to the objectives of the LEP which are contained, relevantly, in clause 2(2)(g)(ii) to ensure the development is undertaken in a matter is sympathetic and does not detract from heritage significance of heritage items and the settings and heritage conservation areas.

4 In furtherance of that objective, I was taken, by Ms Mohr, solicitor for the council, to the specific provisions in cl 27 of the LEP which requires me to take into consideration the likely effect of a proposed development the heritage significance of a heritage item, heritage item group or heritage conservation area in determining an application … to carry out the development of land in its vicinity.

5 The present application seeks consent to demolish the existing return rear structure and to replace it with a new pavilion style extension of two storeys with a balcony to the south at the upper level; a skillion roof sloping downward from west to east and a new double garage facing Smith Street (which is the laneway into the rear). Smith Street is a dead-end laneway terminating adjacent to the rear boundary of the site and leading, at its termination, to the entry gates for vehicles and to the wicket gate for pedestrian access to Runnymede.

6 In considering this application, I identified five questions which required to be addressed in determining the appeal.

7 The parties have not identified any other matters that also require my determination. Not all of these questions arise out of the issues raised by the council as several of them arose out of the evidence of a number of neighbouring objectors.

8 These questions are:

• Is the proposed weatherboard cladding to the upper level of the rear extension on its western side (facing Runnymede) acceptable?
• Is the lesser amount of proposed weatherboard cladding to the southern face of the upper level (which would be visible from Smith Street - at least in part) acceptable?
• Is a double garage to Smith Street acceptable?
• If a double garage to Smith Street is acceptable, is the proposed width of the proposed double door acceptable? and
• Are the proposed amendments to the south-facing balcony at the first level (contained in Exhibit H in these proceedings) acceptable in the context of the neighbours’ objections to the privacy impacts of the rear extension?

9 I turn, first, to the issue of whether the proposed pavilion and its south-facing balcony is acceptable in its impact on neighbouring properties.

10 In doing so, I note that, in response to a suggestion from me, the parties and an architect advising Ms Spring, the neighbour to the east, have conferred and reached agreement on an ameliorative design for the proposed balcony. This involves a significant contracting of the width and depth of the balcony and converting it, in effect, to a Juliette balcony.

11 The balcony will also have privacy screens at each of its ends and, although the degree of glazing proposed at this level of the building will not alter, the panels of glass on either side of the proposed balcony will be of obscure glazing so overlooking will not be permitted from the new proposed master bedroom whilst additional light will be provided to it by this glazing.

12 Although accepting these amendments as improving the situation, the neighbours maintained their objection to the proposal.

13 The Woollahra Heritage Development Control Plan (the DCP) came into effect in late 2003 and thus applies to the application.

14 The decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. It was made clear by Spigelman CJ in Zhang (at para 75 on pp 386 and 387) that three propositions apply.

• First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered.
• Second, the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the LEP.
• Third, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative and the other s 79C matters, when considered, may lead to a differing result from that contemplated by the DCP.

15 It is also appropriate to note the commentary by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 where he sets out a summary of how development control plans should be approached by this Court in Class 1 appeals. The relevant portions of this decision are set out at paras 86 and 87.

16 It is in this context that I approach assessing the proposal against the relevant provisions of the DCP.

17 The DCP clearly envisages that contemporary additions are permissible to be added to the rear elements of items of contributory heritage significance. In addition, although not under the present controls, a separate rear pavilion has been added at the rear upper level to the easternmost of this group of three contributory items – being at 29 Jersey Road.

18 In fact, the DCP, in 3.2.3, requires that, as a consequence of the controls set out in that section, new work should be able to be distinguished from the original on close inspection.

19 The relevant controls, in C1, are that the proposal is to achieve a cohesive relationship between that which is proposed and the existing fabric of the item and the proposal is to be consistent with the character of the site, the streetscape and the precinct where is located.

20 All of the material provided by the council together with the evidence of Mr Staas, the Court appointed expert heritage witness, makes it clear that the form and nature of the proposed structure, setting aside the issue of its cladding - as earlier noted, is acceptable.

21 I am satisfied that, and also noting that there is a need for mutual respect and good manners in closely-settled areas such as this (which is expected from the residents of such areas), the shrinking in size of the proposed rear balcony together with the privacy screens and translucent glazing, comprises an adequate and appropriate response.

22 The size of the balcony, as now envisaged, means that it could not be used significantly and certainly not for entertaining purposes and contrasts favourably with the absence of a privacy screen on the balcony at the rear at 29 Jersey Road.

23 I therefore satisfied, on these bases, that the objections of the residents to the proposed rear extension is not sustainable and is not an impediment to approval of the proposal.

24 I then turn to the issues of the proposed weatherboard cladding.

25 Although I proposed these issues as two separate questions, given that I have come to a common conclusion to them for common reasons, I deal with them as a single matter.

26 I observe that, in the DCP at 3.1.2, the relevant significant characteristic of the precinct is described as being a restricted palette of building materials and forms which, relevantly, typically comprises external walls of painted stucco, sandstone or face brick. The timber-clad cottage exception there noted is not relevant in this case.

27 Section 3.2.1 of the DCP, in its explanation, notes that the original consistency of street front elevation (not relevant in this case) should be retained and conserved and so should side and rear elevations where these are visible from the street or other public places.

28 As consequence, the third of the objectives in this section is to ensure that alterations and additions, within a significant group, conform to the shared characteristics of the group and do not compromise its integrity.

29 The rear presentation of the other two dwellings (in the heritage contributory group of which the site forms part) are of painted, rendered masonry – a matter pressed by Ms Higgins, who gave expert heritage evidence on behalf the council, as being an aspect of some significance.

30 Critically to this question, the DCP provides, in 3.2.2, for Materials and Finishes and deals, in Objective 2, with a desire to encourage finishes and colour schemes to additions to significant items to be appropriate the building type, architectural style and construction period.

31 In pursuit of this, critically, in my view, control C5 provides that where buildings in a significant group share the same original external finish all buildings within the group must have a similar finish.

32 On the other hand, Mr O'Donnell, solicitor for the applicant, correctly draws my attention to the Materials and Finishes details provided in 3.4.5 in the DCP which notes, in the first of its controls that contemporary materials may be used where their proportions, detailing and quantities are consistent with the existing and desired future character of the precinct.

33 This control is explained in the notes commencing this section of the DCP by comment which says the use of modern materials and finishes may be appropriate for new development, alterations and additions provided it does not compromise a cohesive relationship between new and existing urban fabric.

34 In the detailed table setting out appropriate and inappropriate finishes, the DCP notes, on page 82, that timber weatherboards may be appropriate for new walls to additions to existing buildings.

35 In this instance, the two critical relationships are the visibility of the proposed western cladding from the grounds of Runnymede and visibility of the proposed southern cladding from Smith Street.

36 The garden and the whole of the curtilage of Runnymede (not merely the building itself) are listed in the DCP’s schedule of specific heritage items. The trees, substantial although they are, between the proposed extension and garden area and the upper residential areas of Runnymede are deciduous trees and, in winter and autumn, would provide little shielding of the view from Runnymede and its gardens of the proposed extension and its cladding.

37 Although there would be glimpses from Jersey Road, I do not consider that these would be significant as the hedging along the front of Runnymede, an ever-green camellia hedge, would essentially obscure any significant view of the cladding on the west from the road or its footpaths.

38 However, on fine balance, I consider that the inconsistency of the proposed finish when compared with the finish of the other buildings in the group is sufficiently contrary to control C5 in 3.2.2 of the DCP and when coupled with it having an adverse impact on the curtilage of Runnymede renders this aspect of the proposed cladding unacceptable.

39 In reaching this conclusion, I have had regard to the fact that the evidence Mr Staas, in this regard, was primarily concerned, in 8.20 of his principal statement of evidence, with the impact on the Jersey Road streetscape.

40 For similar reasons, I am satisfied that the lack of consistency between the proposed weatherboard cladding and the masonry finish to the rear of the other two buildings in the group of buildings of contributory heritage significance would be jarring when viewed from Smith Street. As a consequence, it would be appropriate to require consistency, as provided by control C5 in 3.2.2, for the southern face of proposed extension.

41 Therefore, as a consequence, I conclude that an appropriate form of masonry treatment would be acceptable and that the proposed weatherboard treatment would not be acceptable.

42 I finally turn to the issue of proposed garage facing Smith Street.

43 There are two quite separate aspects to the proposal for a double garage which would be accessed via Smith Street.

44 The first of those, raised by the council as an issue in the proceedings, concerns the appropriateness of the width and presentation of the double garage in the streetscape of Smith Street.

45 This issue is raised in the context of the relevant provisions of the DCP which are contained in 3.4.9 of that plan.

46 The second matter, however, arises from the concerns expressed by Ms Gregory-Roberts, a resident of Runnymede, as to the safety of the egress by vehicle and by foot for persons leaving Runnymede into Smith Street.

47 The relevant control in the DCP is found at C8 which reads:

If a property has an accessible rear lane, any vehicular access is to be from the rear. Where rear lane parking is permitted and the property is wider than 4.25 m, proposals must provide a visual connection between private and public domain by the inclusion of a pedestrian gate or fencing panel with a minimum width of 900 mm and a maximum height of 1.8 m. Planting along the rear boundary should be incorporated where possible. Garage doors and sections of solid walls should be of minimal width. Garage doors must open into the property.

48 The relevant control, in this case, is a control in support of an objective, relevantly, which is to maintain and enhance the character of laneways where unsympathetic earlier development, such as high brick walls and full width garages, has eroded the quality of those urban spaces.

49 In this context, it is appropriate to note the character of Smith Street in the portion which terminates with the entrance to Runnymede – that being the section that the parties agreed was appropriate for my consideration in this context.

50 I walked that section of Smith Street with the representatives of parties, Mr Staas and the objectors. It was clear that there was a wide and random style of garaging accessing Smith Street. It ranged from single garage doors of a much earlier period – nonetheless taking up most of their allotment width, from observation – through to very large comparatively contemporary wide garage doors.

51 A single instance of a pair of separate garages serving a duplex development was pointed out on behalf of the council as being what it considered appropriate. This comprised a pair of detached but identical garages with a slat fence linking them and with some planting between the fence and boundary. The fence was somewhat higher than that apparently envisaged by the DCP.

52 However, immediately next to the site, at 27 Jersey Rd., there is a single garage with a loft structure above – this being a structure which, although approved prior to the DCP, would still be permitted for the site under the DCP.

53 In her statement of evidence, Ms Higgins said, relevantly:

The scale and form the proposed double garage would have adverse impact on the generally small-scale and pedestrian character of the laneway. One significant characteristic of the West Woollahra Precinct described in part 3.1.2 of the DCP is the “ strong pedestrian character reflected in the narrow streets and interconnecting lanes ”. Boundary to boundary garages on lanes create inhospitable and canyon-like streetscapes which are alien to pedestrians and which detract from the character of the area.

54 A significant matter in this instance, commented upon by Mr Staas, is the fact that Smith Street is not one of the interconnecting lanes of the precinct. Mr Staas indicates that his view might be modified, or at least tempered somewhat, if Smith Street were an interconnecting lane. However he expressed that view that, in its present context, a double garage as now proposed would not be unacceptable.

55 I am satisfied for two reasons that a double garage opening to Smith Street would be acceptable in its present context.

56 The first of these is that, although there will be some pedestrian traffic to and from Runnymede, this is not in an interconnecting lane and the higher standard which might well be appropriate for such a lane is not needed in present circumstances.

57 Secondly, perhaps more importantly, I am satisfied that the entirely undistinguished and eclectic nature of the present architecture of garaging to Smith St. would not be enhanced, in any significant fashion, if I were not to permit a double garage but were to require a single garage with some form of wicket gate or adjacent fencing.

58 The site is at the end of the lane; it is not visible until closely approached and the entirety of the existing character of Smith Street would be “appreciated” or “enjoyed” by anybody walking or driving along it prior to reaching the garaging on the site. Nothing on the site could assist or remedy that "appreciation" or "enjoyment".

59 I then turn to the concerns expressed by Ms Gregory-Roberts about the safety of the egress from Runnymede into Smith Street.

60 It was her uncontested evidence that there was a separate detached dwelling within the grounds of Runnymede whose occupants used the vehicle and pedestrian access to Smith Street.

61 It was also her uncontested evidence that there were three vehicles regularly parked in Runnymede using the Smith Street access.

62 She also gave uncontested evidence of large public functions or gatherings being conducted in the grounds of Runnymede with significant pedestrian access to these through Smith Street.

63 There would be a very short distance, merely the width of the necessary supporting column for the garage door, between the wicket gate from Runnymede and the garage door for the site.

64 Her concern, in this regard, was that pedestrians or vehicles leaving Runnymede had no opportunity to observe vehicles backing out of the proposed garage on the site.

65 For increased safety for vehicles leaving Runnymede, doing so by reversing out of the gates as was shown to be necessary, the applicant has agreed to a condition that he approach energyAustralia seeking consent to erect a convex mirror on the power pole on Smith Lane immediately to the east of the site. If so erected, this may provide some additional opportunity for vehicles leaving Runnymede to observe movements from the proposed garage.

66 However, pedestrians leaving the wicket gate to Runnymede would, essentially, as proposed, step immediately in front of the opening of the proposed garage door.

67 The garage proposed is to be somewhat deeper than that necessary to meet the relevant Australian Standard. I was informed that this resulted from the elimination of an originally proposed loft and the staircase which would have served it.

68 However I observed on the plans that it would be possible for a car, parking on the east, to park further into the garage and thus provide the opportunity for a vehicle entering the western space to turn, somewhat, within the garage and, thus, not need as wide a garage entrance. This would permit an additional length of wall, possibly in excess of 500 or 600 mm, to be provided next to the wicket gate to Runnymede.

69 If provided, this would permit pedestrians leaving running Runnymede some opportunity of looking into the garage after coming out of Runnymede’s grounds.

70 The applicant indicated that he was prepared to accept a condition requiring the narrowing of the garage entrance, in this fashion, to the maximum which the traffic adviser assisting him considered was possible.

71 As a consequence, my determination is that the double garage to Smith Street should be permitted but with this narrowing and thus with improved pedestrian safety for those exiting Runnymede.

72 At the commencement of the hearing, I indicated that, as the council in reality did not appear to oppose the overall substance of the application, I proposed to deal with the matter on the basis that, whatever my determination on the individual but subsidiary issues, if I did not accept the resident objectors concerns about the whole development, I should ensure that the applicant received a consent as a result of these proceedings. The parties indicated that they were prepared to have me deal of the matter on this basis.

73 As a consequence, I determined that the appeal should be upheld but that I would only be able to issue orders when revised agreed plans and revised agreed conditions reflecting the terms of this decision had been filed.

74 The matter was, therefore, referred to the Registrar’s callover on 23 November on the basis that, if revised agreed plans and conditions are filed prior to that date, I would issue orders in Chambers and vacate the callover. I also granted liberty to the parties to re-list the matter before me, if necessary, at 9 am – up to 22 November.

Tim Moore
Commissioner of the Court